by Douglas Ankney

Bucking the trend among the majority of federal circuits, the U.S. Court of Appeals for the First Circuit announced that the residual clause of U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4B1.2(a)(2) – when applied prior to United States v. Booker, 543 U.S. 220 (2005) – is unconstitutionally vague pursuant to Johnson v. United States, 576 U.S. 591 (2015), and a challenge to a sentence imposed under the residual clause may be collaterally raised via 28 U.S.C. § 2255(f)(3). 

In 1997, Anthony M. Shea was convicted in the U.S. District Court for the District of New Hampshire, inter alia, of armed attempted bank robbery under 18 U.S.C. § 2113(a) and (d) (“Count 1”) and of using a firearm during a crime of violence [the armed attempted bank robbery] under 18 U.S.C. § 924(c) (“Count 2”). But the district court also classified Shea as a “Career Offender” under U.S.S.G. § 4B1.2(a)(2)’s residual clause based on Shea’s prior violent felony convictions for federal armed bank robbery and assault and battery on a police officer in Massachusetts. 

Both U.S.S.G. § 4B1.2(a)(2) and the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B) (“ACCA”), defined “violent felony” as a felony offense that “(1) has as an element of the use, attempted use, or threatened use of physical force against the person of another [the “elements clause”], or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the “enumerated crimes clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”].” 

Application of U.S.S.G. § 4B1.2(a)(2) increased Shea’s Guidelines range from 132-162 months to 262-327 months in prison. Because there were no grounds for departure, the judge sentenced Shea to 327 months on Count 1 and a mandatory consecutive term of 20 years on Count 2 for an aggregate term of 567 months in prison. The judgment was affirmed on appeal in 1998.

Then, shortly after Johnson was decided in 2015, Shea filed a § 2255 petition, alleging his conviction under the residual clause of § 924(c) and his enhanced sentence under the residual clause of U.S.S.G. § 4B1.2(a)(2) were unlawful because those clauses are unconstitutionally vague based on the reasoning of Johnson. Shea argued that even though a § 2255 petition must normally be filed within one year of the date a conviction became final, § 2255(f)(3) restarts the one-year clock on “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

The district court denied the petition, reasoning that the new rule in Johnson applied neither to § 924(c) nor to the pre-Booker Sentencing Guidelines. Consequently, the restarting of the clock under § 2255(f)(3) was unavailable to Shea, and thus his petition was untimely. Shea then appealed to the First Circuit.

While the case was pending on appeal, SCOTUS held that § 924(c)’s residual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319 (2019). The parties agreed that, as to this claim, the petition was timely filed and should be remanded to the district court to determine if the conviction under Count 2 could survive under § 924(c)’s elements clause.

Regarding Shea’s challenge to the residual clause of U.S.S.G. § 4B1.(2)(a)(2), the Court observed that in 2005 SCOTUS decided Booker wherein the justices reasoned that making application of the Guidelines mandatory ran afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000). That is, the Guidelines required judges to make a determination of facts that resulted in mandatory imposition of increased minimum and maximum sentences, and this violates a defendant’s right to have a jury make those factual determinations per Apprendi. Booker explained that if the Guidelines were advisory only then they would not run afoul of Apprendi.

Then in 2015, SCOTUS held in Johnson that the residual clause of the ACCA is unconstitutionally vague. The following year, SCOTUS held in Welch v. United States, 136 S. Ct. 1257 (2016), that Johnson applies retroactively. 

Because the residual clauses of U.S.S.G. 4B1.2(a)(2) and of the ACCA are identical, all federal circuits except one have ruled that U.S.S.G. § 4B1.2(a)(2) is also unconstitutionally vague. United States v. Frates, 896 F.3d 93 (1st Cir. 2018). But SCOTUS then overruled those decisions, holding that the Guidelines are not subject to vagueness challenges because they are now advisory only. Beckles v. United States, 137 S. Ct. 886 (2017). Vagueness challenges may be made to statutes and rules that carry the force of law only when those statutes and rules define elements of crimes or fix sentences. Johnson. Because the Guidelines are now advisory only, they do not fix sentences. Beckles.

However, Beckles left unanswered the question of whether the Guidelines could be challenged based on the rule announced in Johnson where sentences were imposed pre-Booker. The Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits all held that Johnson did not restart the one-year clock for challenges to pre-Booker sentences. (See opinion for cases cited.) Generally, these holdings were based on the premise that Johnson didn’t apply to the Guidelines and to grant relief challenging those pre-Booker Guidelines would require a district court to craft a new right not recognized in Johnson 

But the First Circuit rejected that premise. A case announces a new rule if it breaks new ground or imposes a new obligation on the government, i.e., if the result is not dictated by precedent. Chaidez v. United States, 568 U.S. 342 (2013). However, a case does not announce a new rule when it merely applies a governing principle from a prior decision to a different set of facts. Id.

In Johnson, SCOTUS addressed the residual language in the ACCA defining a violent felony as “any felony that presents a serious potential risk of physical injury to another” requiring “a court to picture the kind of conduct that the crime involves ‘in the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” Such a framework left “grave uncertainty” on “how to estimate the risk posed by a crime” and “how much risk it takes for a crime to qualify as a violent felony.” Johnson. Because the residual language failed to clearly inform a defendant of the proscribed conduct and because it was open to arbitrary interpretation by judges, it is unconstitutionally vague. Id.

The First Circuit concluded that the principle behind the rule in Johnson applies to pre-Booker sentences when the Guidelines were mandatory and there were no grounds warranting a departure from those Guidelines. Because the mandatory Guidelines fixed the range of minimum and mandatory sentences, a judge could impose (and in Shea’s case increased the minimum and maximum range) the residual clause of U.S.S.G.
§ 4B1.2(a)(2) violates the rule announced in Johnson. 

As such, Shea’s challenge was timely filed under § 2255(f)(3), the Court concluded. The Court instructed that the burden was on Shea to prove by a preponderance of the evidence that his enhanced sentence was imposed under the residual clause of the Guideline and not under the elements clause. 

Accordingly, the Court vacated the judgment and remanded for further proceedings consistent with its opinion. See: Shea v. United States, 976 F.3d 63 (1st Cir. 2020). 

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